August 10, 2005

Edelstein: Count Me As An Abolitionist

by Guest Contributor

(Jonathan Edelstein practices law in New York, has taught at John Jay College of Criminal Justice, and blogs at The Head Heeb.)

I took the New York bar exam in July 1997. I was warned that taking the exam without a bar review course was suicide, but I reasoned -- correctly, as it turned out -- that it was more a measure of the ability to take tests than of the ability to practice law. I borrowed a set of Bar Bri books from a friend who had taken the course the year before, studied every day on the subway ride to and from work, and kept working right up to the day before the test. I passed first time out, used the $2000 I saved to take a trip to Finland, and came out wondering what the point was to begin with.

I measure the worth of education, whether formal or self-study, by how useful it is in the endeavor for which it is ostensibly preparing me. I have my quarrels with the way law is taught in the United States -- I'll get back to this later -- but in the time I've practiced, I've occasionally used my law school textbooks for reference. I still have my borrowed set of Bar Bri outlines, and in the eight years since I took the exam, I haven't even looked at them once. The knowledge contained in them was either useless, out of date or more easily available someplace else.

Based on this unscientific measure, the purpose of the bar exam seems to be much the same as that of other standardized tests: to measure the test-takers' ability to cram a large amount of information into their minds in a relatively small time. And I don't think it can realistically be improved. There have been proposals to add a "practical" component to the bar exam to measure "lawyering skills," but the variety and unpredictability of law practice can't really be simulated in the context of a mass test lasting two to three days. Any attempt to test lawyering skills on the bar will end up being as artificial and subject to coaching as the current attempt to test basic legal knowledge, and it will introduce an even greater amount of subjective grading.

The question that needs to be asked is why, aside from the financial health of the bar review industry, is a credentialing exam even necessary in the first place? The two justifications I've seen most often are tradition and gate control. The first is always a powerful force in the law, but not one to follow blindly; the second is something that the market can handle as well or better. Not to mention that, even assuming a barrier to be necessary (which is an entirely separate argument), a test that up to 80 percent of first-time takers pass isn't much of one.

I sometimes suspect that the real, unspoken reason for the bar exam's survival as a part of the modern law profession is that law schools don't teach basic skills. The trend in American legal education, especially in the elite schools, is to teach law almost as one of the humanities rather than as a trade, which means that new graduates lack much of the knowledge necessary to practice law day to day. The bar exam is a guarantee to prospective employers that a candidate has studied basic knowledge at least once, in the context of the state in which he intends to practice. But that in itself is hardly a reason to maintain an otherwise useless credentialing test; what's necessary is to reform the educational process leading to that credential and ensure that it provides graduates with an adequate supply of professional knowledge.

Don't mend the bar exam, end it. If you must mend something, mend the law schools.